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ARTICLES
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TEN THINGS EVERY LAW FIRM SHOULD KNOW ABOUT LEGAL MALPRACTICE CLAIMS
We live in litigious times. Here are some tips that can help reduce
your firm's exposure to a successful malpractice claim...(more)
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AVOIDING THE PITFALLS OF SLOPPY JURY RESEARCH
Fact #1: Jurors cannot possibly sort out all of the information
that’s provided to them in a trial.
Fact #2: Jurors more readily accept messages with which they agree,
and then filter additional information as per their version of the story....(more)
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NSBA
NEWS
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CHARITABLE FUNDS INC.,
CFI's Barristers' Ball
The First Annual Barristers’ Ball "Starry Starry Night
" is scheduled for April 30, 2005 in Omaha. Dance the night
away under the stars with the bank Galaxy as they wheel through the
heavens. Swirl with the galaxies, flash with meteors and soar with
comets.
The evening promises to be an event to remember, so mark your calendar
and be prepared for a festive night of fun and entertainment.
Proceeds to benefit the Volunteer Lawyers Project
which is the NSBA's statewide volunteer legal services project and
referral network founded on the belief that all citizens should have
access to the legal system, regardless of ability to pay.
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ATTORNEYS NEEDED TO ASSIST IN GUARDIANSHIP TRAINING
The Volunteer Lawyers Project has been asked by the Court Administrators
Office to assist in a pilot project. The focus of the project is to
train guardians as to their responsibilities as a guardian. The training
will be conducted by a UNL Extension Trainer, however there is a need
to have an attorney present to answer legal questions.
The trainings are in the counties of Adams, Cass, Otoe, Clay, Dakota,
Dixon, Wayne, Gage, Lincoln, and York. If you are interested in assisting
and would like to know of a date and time to volunteer in your area,
please contact Jean McNeil or David Bruggeman at 800-927-0117, or jmcneil@nebar.com,
or dbruggeman@nebar.com.
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SARBANES-OXLEY ACT OF 2002
The Sarbanes-Oxley Act of 2002 established more generous time limits
for filing securities claims, but a federal judge recently has ruled
that the law cannot be used to revive claims for which previous, shorter
time limits had already expired. In L-3 Communications Corp. v. Clevenger,
U.S. District Judge Anita B. Brody found that none of the federal appellate
courts has yet tackled the question, but that numerous district court
judges have shown a trend against allowing Sarbanes-Oxley to revive
previously expired claims. Brody found that prior to Sarbanes-Oxley,
the federal securities laws included no specific statutes of limitations.
Judge Brody's opinion said that the statute of limitations for such
claims was governed by the U.S. Supreme Court's 1991 decision in Lampf
Pleva Lipkind Prupis & Petigrow v. Gilbertson in which the Court
held that the statute of limitations period for such a claim was one
year from the date of discovery of facts constituting the violation
or three years after the violation, whichever was earlier. Sarbanes-Oxley
expanded those time limits by allowing plaintiffs to file within the
earlier of two years after discovery or five years after the violation.
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THIS NOTICE MAY APPLY TO LAWYERS WHO PRACTICE IN CALIFORNIA BUT WHO
ARE NOT LICENSED IN CALIFORNIA. IF YOU HAVE ANY QUESTIONS ABOUT PRACTICE
IN CALIFORNIA, CONTACT THE CALIFORNIA BAR ASSOCIATION.
Some non-California attorneys will be required to take MCLE courses.
Effective November 15, 2004, two categories of non-California attorneys
will be required to meet the same MCLE requirements as members of the
State Bar of California.
Who Are They?
Registered Legal Services Attorneys are non-California attorneys who
provide legal services in California to indigent clients through a qualifying
legal services provider and under the supervision of a member of the
State Bar. Within the first year of their registration to practice,
they must complete the same 25 hours of MCLE required of California
bar members. Because they are limited to three years of practice in
this category, they do not have an MCLE requirement after their first
year of compliance.
Registered in-House Counsel are non-California attorneys who serve as
in-house counsel for a single institution that does not provide legal
services to third parties. Within the first year of their registration
to practice, they must complete the same 25 hours of MCLE required of
California bar members. There is no limitation on how long Registered
In-House Counsel may practice in California, so, after the first year
of registration, they must continue to comply with the MCLE requirement
(25 hours every three years).
There is no registration or MCLE requirement for two other categories
of out-of-state attorneys: those practicing law temporarily in California
in anticipation of litigation proceedings, and those providing transactional
and other non-litigating services on a temporary basis.
FOR MORE INFORMATION
Contact mjp@calbar.ca.gov or
call 415-538-2235 or visit the California State Bar's website at
www.calbar.ca.gov
/ Attorney Resources / MJP
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YOUNG LAWYERS BEST PRACTICES SEMINAR SERIES
you are invited by the Nebraska State Bar Association's Mentoring
Committee and Young Lawyers Section to attend, free of charge, the Best
Practices seminar series. The eight session series will focus on a wide
range of substantive topics and will offer practical training for new
lawyers and identify available resources to aid in your practice. The
sessions will be led by experienced Nebraska attorneys who will offer
insight, from a practical prospective, on how to successfully practice
law. Additionally, at the conclusion of each seminar, the Nebraska State
Bar Association will sponsor a free Reception for the participants to
get to know each other and other members of the Nebraska Bar. Here is
your opportunity to obtain high quality training at no cost and meet
many fellow Bar Members.
The first session is a special event, which will be held at the Roman
L. Hruska Federal
Courthouse in Omaha on September 21, 2004. A panel of county, state
and federal judges will speak to the young lawyers regarding practical
tips on practicing law. A reception with the judges will follow. Click
here for the registration form.
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CLE
UPDATES
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NCLE SECTION CALENDAR
Click here for a calendar
of CLE programs to be offered in upcoming months.
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MEDIATION SKILLS TRAINING SEMINAR
Mediation Skills Training Nebraska Continuing Legal Education And The
Nebraska State Office of Dispute Resolution Training Institute Nov.
10-13, 2004 8:00 a.m. to 5:30 p.m...(flyer)
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2004 YEAR IN REVIEW
We have been up and down in the polls as far as attendance at seminars
this year to date.
Some very good programs had excellent attendance, while some equally
solid programs were attended lightly. Being a provider in a voluntary
CLE state can be a challenge but we keep striving, thanks to the help
of some excellent planning chairs, and the dedication of lawyers who
take time from their busy schedules to attend CLE events.
To summarize what we have provided so far:
In January NCLE presented two programs: Business Law Fundamentals, chaired
by Kurt Tjaden, and Tax for the General Practitioner, co-chaired by
Nicholas Niemann and Michael Weaver. The business law program attracted
54 attendees and tax netted 38.
Immigration Law in February, co-chaired by Greg Minter and Paul Stultz,
totaled 90 in attendance and ran two tracks - a cor curriculum and a
special topics program.
In March two large programs, Estate Planning and Probate and Drafting
Under the Uniform Trust Code, chaired by Kent Endacott and Pat Timmer
respectively, attracted 166 and 164. The March Estate Planning program
usually attracts a good number of attendees, and this year was consistent
with previous years.
Gail S. Perry of Lincoln put together an excellent appellate practice
program presented April 16th, but it was very sparingly attended (38)
in spite of presentations from two Supreme Court justices and the Clerk
of the 8th Circuit Court of Appeals. A week later, an Elderlaw seminar,
planned by Timothy Brouillette of North Platte, was offered in Omaha
and had 67 in attendance.
NCLE did its usual intensive May Mediation program, and then took a
hiatus from late May through June to prepare materials and film or tape
for the online CLE presentations.
July brought Family Law, with 95 attending and August brought Municipal
Law, which attracted 85, a few more than came the first time it was
offered in 2002 (after a ten year absence from our calendar)!
Family Law was ably planned by the Family Law Section Executive Committee,
as it is every year, with planning co-Chairs Matthew Higgins and Virginia
Albers. Municpal Law is presented as a cooperative effort of the League
of Nebraska Municipalities, the NSBA Government Practice Section, and
NCLE.
Also in August, NCLE offered a live webcast program on healthcare litigation
in partnership with LegalSpan. The program was live, transmitted over
our DSL line from a studio in Texas, and offered the opportunity for
participants to call in questions.
Commercial Real Estate, presented by Jerry Slusky, and Residential Real
Estate, presented by Daniel Lindstrom were offered on September 9 and
10, filling the traditional September Real Estate slot. These programs
attracted 66 and 65 attendees on Thursday and Friday, and were accredited
by the Real Estate Commission, Department of Insurance, and Abstracters'
Board.
Last but not least, last May featured the NSBA Tech Show, planned by
the Technology Committee, which hosted 76 attendees. Sam Clinch, who
works very closely with that Committee, helped pull that event together.
In March, the Young Lawyers Section offered their traditional Practice
Seminar at UNL College of Law, and 115 attended that program.
It is hard to predict what lawyers will want to attend, but CLE planners,
for the most part, have worked very hard to produce quality programs
to help lawyers keep up to date in their practice areas. On the horizon:
In addition to the NSBA Annual Meeting and the programs offered there,
NCLE still has Workers Compensation on November 5, sponsored by the
Workers Compensation Section and chaired by John Iliff, and a Litigation
program to be offered November 19 chaired by Maren Chaloupka. Both programs
will be offered in Omaha this year.
Decermber, with winter weather and a holiday season, is usually a quiet
time for CLE, but NCLE and LegalSpan are planning another live webcast
covering environmental litigation, to be held December 10. Watch your
mail for more information on all of our upcoming programs.
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RESOURCES
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CASEMAKER TIP #21
Searching within a case or document.
This is more a computer use tip than it is about Casemaker™.
If you want to search for a word or phrase within the case or document
that you have located you can use a feature of your browser. Under the
'Edit' menu there is a 'Find' tool(also accessible by Ctrl - f) which
enables a word search within the currently displayed document.
Doug Kluender
dkluender@lcpdlaw.com
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PRACTICE TIP: TEN, NINE, EIGHT.....
With all the papers and documents that are piled up in our offices,
it becomes overwhelming and often times downright discouraging to even
think about dealing with them. As a result, we let things get worse
and worse until we start misplacing important documents and clients
wonder about our organization skills. One approach is to take it in
little pieces. Several times a week set a short term goal of ten minutes
to go through a growing stack of papers that need to be filed or trashed.
That way, you can accomplish something without feeling you need to get
everything done. When the ten minutes is over, you may feel so good
that you may actually want to continue and finish much more! Also try
to take advantage of the extra time when a meeting suddenly cancels;
try to use the extra time to go deeper into the stacks of paper. If
you cull through and throw out the junk first, then go back to read
and file things, the job is easier.
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PRACTICE TIP: COMMON INSURANCE TERMS AND THEIR MEANING
These terms are commonly used in the Professional Liability insurance
industry.
It is important to distinguish between a policy that covers "prior
acts" and a policy that has been issued a "tail".
Extended Reporting Period (ERP or Tail): An optional coverage
available in most claims made policies allowing the insured to report
claims made
against the insured after the termination date of the policy. The liability
imposing causes must have occurred prior to the termination date and
after the retroactive date, if applicable. This is what most retiring
attorneys purchase when they leave private practice.
The tail is an endorsement providing so-called "tail" coverage
(adopting industry jargon describing the lag between occurrence and
report of claim as the "long tail" of professional liability
business). This endorsement provides an additional period of time (either
limited or unlimited) in which the insured can report claims which arise
from occurrences while insured with the first company.
Prior Acts: The earliest date for which coverage is afforded
under a claims made form. The retroactive date is usually the inception
date of the first policy the insured carried as long as the insured
has had continuous coverage. Most carriers will continue to provide
prior acts coverage to firms when they move to a new carrier. This is
commonly referred to as "full prior acts" coverage.
Retroactive Date: This is a date that a carrier may choose to
restrict coverage exposure. It provides coverage on a "go forward"
basis only. It is most often used then an attorney moves from one firm
to another and the hiring firm does not want to cover the new attorney's
past acts or when a new firm is created from the merger of other entities.
Your policy Declarations Page or an attached endorsement will identify
if your coverage is being restricted in this manner.
Claims Made Policy Form: Under a claims-made policy, the event
that triggers the insurer's duty is the reporting of a claim within
the policy period which arises from an occurrence within the same policy
period. Claims made against under this policy form mean that the limits
and deductibles in force at the time the claim is made are what govern
policy limits. The error could have occurred in the past, but the claim
is just now being asserted. This type of coverage is what carriers offer
in today's market.
Occurrence Policy Form: Until the 1970's, almost all liability
insurance policies, including legal malpractice policies, were written
on "occurrence" policy forms. Under such a policy form, the
event, which creates the insured's liability, is also the event which
triggers the insurer's contractual obligation to indemnify the insured.
Claims against this type of policy are subject to the limits and deductibles
that are in force at the time the error is committed.
Marsh's Affinity Group Services, a service of Seabury & Smith.
All rights reserved. Reproduction in whole or part without written permission
is strictly prohibited.
July 2004
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